As long as McCulloch v. Maryland remains good law, this argument is transparently wrong.

If regulating “inactivity” is necessary to legislation addressing a problem that the dissent concedes in its first paragraph, then it is therefore constitutional.

And in addition to the internal incoherence of the opinion, it’s worth noting as well that Kennedy and Scalia both approved of the application of criminal sanctions to people growing medical marijuana for their own use. The positions of Thomas and Alito are radical, but are at least consistent. Kennedy and Scalia had no problem with a far more dubious use of federal power as long as it was being exercised by a Republican administration. This dissent is a particular embarrassment to both.

…I would also like to note that Ruth Bader Ginsburg is awesome:

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”

As long as McCulloch v. Maryland remains good law, this argument is transparently wrong.

If regulating “inactivity” is necessary to legislation addressing a problem that the dissent concedes in its first paragraph, then it is therefore constitutional.

And in addition to the internal incoherence of the opinion, it’s worth noting as well that Kennedy and Scalia both approved of the application of criminal sanctions to people growing medical marijuana for their own use. The positions of Thomas and Alito are radical, but are at least consistent. Kennedy and Scalia had no problem with a far more dubious use of federal power as long as it was being exercised by a Republican administration. This dissent is a particular embarrassment to both.

…I would also like to note that Ruth Bader Ginsburg is awesome:

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”